Libby's Motion to Dismiss

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Yesterday Scooter Libby's Counsel filed a motion to dismiss. There has been a lot of bad reporting on what the motion argues. The New York Sun, however, does a good job explaining what I think is a solid argument for dismissal:

Yesterday, a federal court filing by Mr. Libby's team before Judge Reggie Walton raised another good reason in Mr. Libby's favor — the appointments clause of the Constitution. It was a well—crafted, and by our lights, persuasive shot across the bow of the prosecutor. The motion to dismiss filed yesterday signaled that Mr. Libby is on offense, prepared to fight the constitutional issues in this case all the way to the Supreme Court. The argument is that the indictment should be dismissed "on the ground that it was obtained, approved and signed by an official — Special Counsel Patrick Fitzgerald — who was appointed and exercised his powers in violation of the appointments clause of the Constitution."
The appointments clause resides in Article II of the Constitution, which enumerates the powers of the president. It says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The appointments clause, in other words, divides up the executive branch into principal officers — who require Senate approval — and "inferior officers," who do not. Mr. Fitzgerald was not confirmed by the Senate as a principal officer, so he isn't one. But he is not accountable to the attorney general or to any other Justice Department official, so he isn't an inferior officer, either. He is, not to put too fine a point on it, an illegal, extra—constitutional prosecutor.

The motion to dismiss goes back to the founding fathers to explain the reasoning behind the appointments clause. Alexander Hamilton, in Federalist No.76, departed from what would be his later deplorable tendency to amass power in the executive and acknowledged that Senate confirmation is an "excellent check" against this risk of "incautious" appointments. Roger Sherman, a signer of the Declaration of Independence who attended the Constitutional Convention at Philadelphia, wrote to John Adams explaining that "If the president alone was vested with the power of appointing all officers, ... he would be liable to be deceived by flatterers and pretenders to patriotism, who would have no motive but their own emolument. They would wish to extend the powers of the executive to increase their own importance."

That is exactly what has happened in the case of Mr. Fitzgerald. The prosecutor himself acknowledged in an August 27, 2004 affidavit, "I serve as the functional equivalent of the attorney general on this matter." Yet he has been confirmed to no such job.

You can read the motion and exhibits here:   
 
Today, there will be a hearing on discovery issues. This motion was just filed, the prosecutor has some time before he must respond to it and after that we can expect a hearing will be scheduled on it.
 
Clarice Feldman    2 24 06

Yesterday Scooter Libby's Counsel filed a motion to dismiss. There has been a lot of bad reporting on what the motion argues. The New York Sun, however, does a good job explaining what I think is a solid argument for dismissal:

Yesterday, a federal court filing by Mr. Libby's team before Judge Reggie Walton raised another good reason in Mr. Libby's favor — the appointments clause of the Constitution. It was a well—crafted, and by our lights, persuasive shot across the bow of the prosecutor. The motion to dismiss filed yesterday signaled that Mr. Libby is on offense, prepared to fight the constitutional issues in this case all the way to the Supreme Court. The argument is that the indictment should be dismissed "on the ground that it was obtained, approved and signed by an official — Special Counsel Patrick Fitzgerald — who was appointed and exercised his powers in violation of the appointments clause of the Constitution."
The appointments clause resides in Article II of the Constitution, which enumerates the powers of the president. It says the president "shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments."

The appointments clause, in other words, divides up the executive branch into principal officers — who require Senate approval — and "inferior officers," who do not. Mr. Fitzgerald was not confirmed by the Senate as a principal officer, so he isn't one. But he is not accountable to the attorney general or to any other Justice Department official, so he isn't an inferior officer, either. He is, not to put too fine a point on it, an illegal, extra—constitutional prosecutor.

The motion to dismiss goes back to the founding fathers to explain the reasoning behind the appointments clause. Alexander Hamilton, in Federalist No.76, departed from what would be his later deplorable tendency to amass power in the executive and acknowledged that Senate confirmation is an "excellent check" against this risk of "incautious" appointments. Roger Sherman, a signer of the Declaration of Independence who attended the Constitutional Convention at Philadelphia, wrote to John Adams explaining that "If the president alone was vested with the power of appointing all officers, ... he would be liable to be deceived by flatterers and pretenders to patriotism, who would have no motive but their own emolument. They would wish to extend the powers of the executive to increase their own importance."

That is exactly what has happened in the case of Mr. Fitzgerald. The prosecutor himself acknowledged in an August 27, 2004 affidavit, "I serve as the functional equivalent of the attorney general on this matter." Yet he has been confirmed to no such job.

You can read the motion and exhibits here:   
 
Today, there will be a hearing on discovery issues. This motion was just filed, the prosecutor has some time before he must respond to it and after that we can expect a hearing will be scheduled on it.
 
Clarice Feldman    2 24 06